Gobin v. Allstate Ins. Co.

• Decision Date: 30 May 1989
• Docket Number: No. 21987-1-I,21987-1-I
• Citation: 773 P.2d 131,54 Wn.App. 269
• Parties: Bradley J. GOBIN and Judith L. Gobin, husband and wife, Plaintiffs, v. ALLSTATE INSURANCE COMPANY, a foreign insurance company, Respondents, Christine W. Henry and Vernon D. Henry, wife and husband, Appellants, and Liala B. Henry and John Doe Henry, wife and husband, Defendants.
• Court: Washington Court of Appeals

Page 269

54 Wn.App. 269

773 P.2d 131

Bradley J. GOBIN and Judith L. Gobin, husband and wife, Plaintiffs, v. ALLSTATE INSURANCE COMPANY, a foreign insurance company, Respondents Christine W. Henry and Vernon D. Henry, wife and husband, Appellants and Liala B. Henry and John Doe Henry, wife and husband, Defendants.

No. 21987-1-I.

Court of Appeals of Washington,

Division 1.

May 30, 1989.

Russ Juckett, Everett, Paul Burns, Spokane, for appellants Christine and Vernon Henry

Keith A. Bolton, Peterson, Lycette & Snook, Seattle, for respondents Bradley J. and Judy Gobin.

WEBSTER, Judge.

Christine Henry appeals a summary judgment declaring that she has no underinsured motorist claim for personal injuries she sustained in an automobile accident. The principal issue is whether a passenger in Henry's car may corroborate her allegation that an unidentified hit-and-run, or "phantom vehicle", caused her accident.

FACTS

Henry drove her car into a tree at 2:30 a.m. on January 24, 1987. She injured herself and others riding in her car.

An Allstate insurance policy insured Henry against liability claims. The policy also provided personal injury protection (PIP) and underinsured motorist (UIM) coverage as Allstate paid PIP benefits to Henry and the others riding in her car. Allstate also paid a liability claim in favor of two of Henry's passengers.

                well.   UIM benefits were payable only if another vehicle caused the accident
                

Henry applied for UIM benefits, but Allstate denied her claim. Allstate maintained that testimony by one of Henry's passengers was insufficient to establish that a hit-and-run vehicle caused the accident.

INDEPENDENT CORROBORATION

Insurers may condition UIM benefits on corroboration when a claimant alleges that a "phantom vehicle" caused the harm for which benefits are sought. See RCW 48.22.030(8). A "phantom vehicle" is one which "has no physical contact with the insured or a vehicle which the insured is occupying at the time of the accident". Id. Corroboration may be required from someone other than (1) "the insured" or (2) "any person having an underinsured motorist claim". RCW 48.22.030(8)(a). When a policy so provides, a witness in either class may not provide the necessary corroboration. Powell v. Viking Ins. Co., 44 Wash.App. 495, 500, 722 P.2d 1343 (1986).

Henry's policy speaks of "the insured person or any other person having an uninsured motorist claim". (Emphasis added). The word "other" necessarily implies that "the insured" has a UIM claim. Thus, under Henry's policy, the only persons who may not provide the necessary corroboration are persons with UIM claims.

Henry attempted to use one of her passengers as a corroborating witness. The passenger appeared to be unharmed immediately after the accident. However, the passenger received treatment on the night of the accident and complained of pain in her lower back, left hand, and hip. An emergency room doctor diagnosed the passenger's injuries as a "strained back" and a "contusion" on her left hand. The passenger told a paralegal 10 days after the accident that she was not receiving medical treatment. However, she confirmed that she had bruised her left hand and that she had suffered a sore back.

Allstate paid the passenger $431.01 in PIP benefits, consisting of medical bills. The quoted figure arguably encompassed all of the passenger's medical expenses. However, Henry did not establish this.

Nor did Henry establish that the passenger was compensated for pain and suffering. Under the policy's UIM coverage, the passenger was entitled to recover from Allstate to the same extent as from an underinsured motorist. See RCW 48.22.030(3). The evidence suggests that the passenger had a claim for pain and suffering which remains unpaid. See Grange Ins. Ass'n v. Hubbard, 35 Wash.App. 407, 667 P.2d 121 (1983) ("bodily injury" encompasses pain and suffering); West Am. Ins. Co. v. Buchanan, 11 Wash.App. 823, 525 P.2d 831 (1974) (same).

Notably, the passenger signed a release in favor of Henry and Allstate. However, the release on the face of it appears to apply only to claims against Henry, and derivatively Allstate, and not claims against the alleged "phantom" driver. The release speaks of "responsibility or liability" for the accident on the part of Henry and Allstate. It makes no mention of UIM claims against Allstate because of a phantom driver. Referring to the release, Henry's attorney averred at summary judgment that it applied to "the liability portion" of Henry's policy. Implicitly, then, the release does not apply to claims under the UIM portion of Henry's policy. Henry does not even refer to the release in her brief. She thus concedes that it does not apply to UIM claims. We accordingly construe the release as not barring claims by Henry's passenger against the alleged phantom driver, and derivatively against Allstate. So construed,...